Attorney Generals Reference No. 81 and 82 of 2009 (Butler)

For planned group robberies in occupied homes, sentences must reflect the gravity of entering victims’ homes, threats of violence, use of a weapon to intimidate, and the fear caused. The absence of actual violence and credit for early guilty pleas are material mitigation, but they do not prevent a sentence from being unduly lenient where serious aggravating features and relevant antecedents are present.

On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court may increase sentences which fail properly to reflect those features.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer sentences imposed at Swansea Crown Court on Wayne Butler and Kevin Taylor as unduly lenient.

The offenders had participated in two robberies and a burglary committed on the same day. The robberies occurred in dwelling-houses. Butler carried a baseball bat, which was used to intimidate one victim, although neither offender used actual violence. Both offenders had significant criminal records and were subject to court orders when the offences were committed.

The central question was whether the robbery sentences properly reflected the seriousness of the offending.

1. The references succeeded. The court granted leave and held that the robbery sentences were unduly lenient. It was necessary to increase them.

2. The offending involved two planned group robberies in victims’ homes. Butler carried a baseball bat. It was used to threaten and intimidate the victim of the first robbery, and its presence was known during the second. The victims were seriously frightened. These were attacks on householders in their homes, committed by offenders with serious relevant antecedents who were subject to court orders.

3. The court gave proper weight to the early guilty pleas. It also recognised Taylor’s intervention to calm the second robbery and reduce the risk of violence. No actual violence was used. Those matters did not outweigh the aggravating features.

4. For Butler, the sentence on the first robbery was increased to four years’ imprisonment and that on the third robbery to two years’ imprisonment, consecutively. The 136-day period for breach of licence was ordered to be served first. Under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, it could not be ordered consecutively so as simply to add to the total sentence.

5. For Taylor, the sentence for the first robbery was increased to three and a half years’ imprisonment. His remaining sentences and the remaining Crown Court orders were left unaffected.

• Court of Appeal (Criminal Division): Granted leave on the Attorney General’s reference, found the robbery sentences unduly lenient, and increased them: [2010] EWCA Crim 354.

• Crown Court at Swansea: On 11 September 2009, imposed sentences for robbery and burglary on Butler and Taylor.